Just when you thought it was safe to go
back in the water…

Jim Prevor’s Perishable Pundit, October 5, 2006

…the U.S. Attorney’s Office for the Northern District of California issued the following statement:

The US Attorney’s Office for the Northern District of California announced that agents of the FBI and FDA Office of Criminal Investigations executed two search warrants today on Growers Express in Salinas, CA, and Natural Selection Foods in San Juan Batista, CA, in connection with the September 2006 outbreak of E. coli 0157:H7 that the FDA has traced to spinach grown in the Salinas area.

“FDA continues to work with the U.S. Attorney’s Office and the FBI to determine the facts behind this outbreak,” said Dr. Robert Brackett, Director of the FDA Center for Food Safety and Applied Nutrition.

United States Attorney Kevin V. Ryan stated that "I want to reassure the public that there is no indication in this investigation that leaf spinach was deliberately or intentionally contaminated. We are investigating allegations that certain spinach growers and distributors may not have taken all necessary or appropriate steps to ensure that their spinach was safe before it was placed into interstate commerce. Moreover, the investigation has not revealed any evidence of a new or continuing threat to public health in connection with the matters under investigation."

The affidavit in the case is under seal, so we don’t know what is in it. Natural Selection Foods issued its own statement on October 4:

SAN JUAN BAUTISTA; CALIF; October 4, 2006: This morning, officials from the Food and Drug Administration (FDA) and the Federal Bureau of Investigation arrived at the San Juan Bautista facilities of Natural Selection Foods. According to federal officials, today’s visit is part of the ongoing investigation that the FDA has been conducting related to the e coli contamination of spinach. It appears that the focus of this latest stage of the investigation continues to be on the fields where the products are grown by third party growers. As we have from the start, we will cooperate completely with this phase of the investigation.

The documents requested today included those that have been previously provided to both the FDA and the California Department of Health Services in the course of the investigation, as well as additional information that investigators believe will be helpful in their investigation. We will continue to cooperate fully with the investigation and welcome all efforts to trace this problem back to its source.

All tests performed on our processing facilities, both those done by independent scientists and government investigators, have been negative (clean). We continue to believe that the source of the contamination was in the fields from which we buy our spinach. While we have always maintained the highest level of food safety standards, last week we implemented a set of aggressive and unprecedented measures to help assure that no contaminated product, spinach or anything else, will enter our processing operation again. We have begun to set in place a program of rigorous testing and analysis of field operations from the seed through to the harvest. Finally, and most importantly, we are testing every lot of fresh product before it enters our processing stream. If contamination is found, the product will either be refused or destroyed. Essentially, we are raising the bar on food safety for any grower whose product will be washed and packaged in our facility.

We will continue to provide relevant updated information as it becomes available.

Employees at the facilities advise they were banned from the premises during the search. This is standard procedure. In fact in multi-story buildings, they evacuate the floors above and below during a search even if those floors are occupied by unrelated companies.

It feels a little melodramatic to me, like when the district attorney in Manhattan liked to get on TV by dragging guys from their Wall Street offices in handcuffs, although he knew a simple phone call to their attorneys would have sufficed.

I’ve been listening to the FDA briefings since the beginning of the crisis and the “briefers” were asked many times by the press some questions similar to asking if the FDA was getting full cooperation. There was never an indication that the FDA thought anyone less than 100% cooperative.

If the FDA had requested every hard drive in the place, I think they would have gotten them on a silver platter. So the need for the grand raid is uncertain. Still, there is always the possibility of evidence tampering, so sometimes you don’t want to tip your hat as to what you are looking for. In any case, the raid was done.

What could the case be? Well, everything is under seal so we don’t know. Since most of the produce safety rules are voluntary, there is no case there so they would have to rely on either general violations of law related to selling adulterated product in interstate commerce or claiming criminally negligent homicide, which is defined as an unintentional killing in which the actors should have known they were creating substantial and unjustified risks of death by conduct that grossly deviated from ordinary care.

I’ve known many of these players my whole life and I don’t believe for a minute that they would be involved with anything like this. But, of course, there can always be a disgruntled employee.

The standard of proof on criminal cases is much higher than on civil cases. Usually you need to prove something “beyond a reasonable doubt” as opposed to “by a preponderance of the evidence.” It is hard to see a case that is going to stick. But it could exist.

We can’t speak out of turn here. There must be an accusation that someone knew or should have known something was wrong and didn’t act to stop it. Whether there is evidence to support such an accusation, we will know soon enough. But, certainly, the elevation of the situation to a criminal investigation is very bad news for anyone who winds up being accused.

Ironically, a criminal verdict of guilty for some individual actor might relieve a lot of pressure on the industry. After all, everyone understands that a malicious, evil or negligent player can pose a threat.

Food safety systems are really not designed to protect the public against criminals, so identifying criminal act as the “cause” of the problem would reduce the pressure for dramatic changes in the industry protocols.